Friday, 6 February 2009

A Legal Analysis on Why the Perak Sultan Got It ALL Wrong in Law by Sacking the Menteri Besar

My respectful view is that His Highness may have acted erroneously in directing the resignation of the menteri besar.

His Highness had moved on the assumption that the request for dissolution was prompted by the menteri besar having ceased to command the confidence of the majority. This may have been based on a misapprehension of the situation (by the Sultan) and the appeal to the Sultan to dissolve the assembly for reasons other than confidence.

If so, then the directive to resign was arguably NOT tenable.

The central question is WHETHER His Highness was empowered to conclude that the incumbent menteri besar no longer commanded the confidence of the assembly WITHOUT there having been a vote of no confidence.

There is precedent. The Federal Court had in 1966 (Stephen Kalong Ningkan) determined that a similar provision of the Sarawak Constitution required there to be a vote of no confidence taken in the assembly BEFORE the chief minister was obliged to resign.

Much will now depend on what the incumbent menteri besar (Mohd Nizar) does."-Malik Imtiaz Sarwar

WE ASK,

Will His Highness the Sultan of Perak have the singular courage to admit he had erred in law, thus had made a major constitutional blunder, to revoke his earlier decision?.

Knowing in hindsight,

firstly, the strong and severe criticisms and unhappiness of the majority of Malaysians to unceremoniously sack the Menteri Besar and to appoint a new government in such a hurry;

secondly, knowing the full facts of the circumstances leading to the crisis faced by the sitting state government, and

thirdly,

knowing the overwhelming view of legal analysts and prominent political commentators that His Highness should have, in the first place , consented to the request by the Menteri Besar to dissolve the State Assembly.

Did His Highness decide as one who once was an esteemed learned judge or as a ruler?

On both counts, it was a poor and unwise decision.-Malaysian Unplug

Perak: A constitutional crisis

byMalik Imtiaz Sarwar(Malik Imtiaz Sarwar is the president of the National Human Rights Society (HAKAM) and a lawyer)

Now that the dust is settling, it is becoming clearer what it is that took place in Perak over the last 24 hours.

My respectful view is that His Highness may have acted erroneously in directing the resignation of the menteri besar.

As always, it will be useful to consider the objective facts. They are as follows:

His Highness, the Sultan of Perak, granted audiences and in doing so was made to understand that the majority of the members of the Legislative Assembly no longer support the incumbent menteri besar. Of these, three memberships are disputed in view of letters of resignation having been tendered to the speaker.

The speaker has taken the position that the letters are valid and as such the three members are no longer members. Further, legal proceedings are being contemplated excluding the three disputed memberships, both the Pakatan Rakyat and the Barisan Nasional each hold influence over 28 members.

The 28 members under BN (28 UMNO and 1 MCA) have indicated in private to His Highness that they no longer have confidence in the incumbent menteri besar.

With the (three) disputed memberships (who defected as Independents), this number increases to 31

Crucially, the directive was made in accordance with Article 16(6) of the Perak Constitution. This article provides that where a request for dissolution is made as a consequence of the menteri besar ceasing to command the confidence of the majority of the members of the assembly and His Highness refuses, the incumbent menteri besar must tender the resignation of the Executive Council.

From the above, it is apparent that His Highness considered the situation to be one in which the menteri besar had ceased to command the confidence of the majority of the members.

In doing so, His Highness accepted the three disputed members as still being members of the assembly and as such approached the situation on the assumption that the Barisan block outnumbered Pakatan by three instead of one.

It must be borne in mind that:

Article 16(6)(of the Perak Constitution) is specifically directed to a no-confidence scenario, that is the incumbent menteri besar can seek the dissolution of the assembly upon his having ceased to command the confidence of the majority

Article 36(2) however provides more generally that His Highness has the power to dissolve the assembly. This provision is aimed at allowing His Highness to dissolve the assembly for OTHER reasons thought to be appropriate

as a matter of law His Highness is empowered to do what is permitted under the Perak Constitution and the Federal Constitution. This is the essence of a constitutional monarchy

the Perak Constitution does NOT empower His Highness to dismiss the menteri besar. The manner in which the menteri besar is to be removed from office is as provided for under Article 16(6), through a REFUSAL to dissolve the assembly at the request of the menteri besar when the menteri besar has ceased to command the confidence of the majority of the assembly.

It is apparent that His Highness had moved on the assumption that the request for dissolution was prompted by the menteri besar having ceased to command the confidence of the majority. This may have been based on a misapprehension of the situation and the appeal to the Sultan to dissolve the assembly for reasons OTHER than confidence.

If so, then the directive to resign was arguably NOT tenable.

All things considered, His Highness had come to the conclusion that in any event the menteri besar no longer commanded confidence. In this context, the central question is:

Whether His Highness was empowered to conclude that the incumbent menteri besar no longer commanded the confidence of the assembly WITHOUT there having been a vote of no confidence.

There is precedent.

Federal Court Decision (1966) on the Sarawal Constitution

The Federal Court had in 1966 (Stephen Kalong Ningkan) determined that a similar provision of the Sarawak Constitution requiredthere to be a vote of no confidence taken in the assembly before the chief minister was obliged to resign.

The decision was based on several key factors that I believe to be relevant to this discussion.

These were:

the Sarawak Constitution did NOT empower the Governor to dismiss a chief minister

the phrase “confidence of the majority” was a term of art and could be read as implying the need for a vote of confidence or a vote on a major issue. The court took into consideration the fact that the Sarawak Council Negri should, in principle, manage its OWN affairs.

NO vote had been taken in the Council Negri and instead the Governor had come to his conclusion based on extraneous matters, particularly confidential letters. The court observed that members expressing a view OUTSIDE the Council Negri might very well take a different position in it when under the scrutiny of the public. This was of particular significance as out of the 42 members of the Council Negri only 21 had indicated their not supporting the incumbent chief minister.

Relevance to the Present Crisis in Perak

It could therefore be credibly argued that the Perak Constitution requires the tabling of a vote of confidence in the circumstances.

The factors considered by the Federal Court have great significance to the scenario at hand (ie in Perak's case) , one as ambiguous as that which the Federal Court was faced with in 1966.

Much will now depend on what the incumbent menteri besar does.

In Stephen Kalong Ningkan, the chief minister concerned took it to court and won.

The Federal Court declared the Governor as having acted unconstitutionally and the dismissal of the chief minister invalid.

Mohamad Nizar could attempt the same course.

It would be regrettable if the situation were forced to escalate to that level.

Litigation of that nature, any nature for that matter, will be disruptive at all levels. With the Barisan Nasional moving in already, it seems that there is little choice in the matter.

Walking away is simply NOT an option that the Constitution and the people and democracy will allow for.

In the meanwhile, we will have to buckle in for what has become a FULL-BLOWN Constitutional Crisis.- Malik Imtiaz Sarwar

Senior constitutional lawyer Dominic Puthucheary, who appeared for Mohd Adnan and Pairin in the 1985 case, said in an exclusive interview with Malaysiakini today that based on Justice Tan’s landmark judgment, there is NO constitutional provision for the dismissal of a chief minister BY A RULER.

These constitutional precedents were established by the High Court in Sabah in the famous case involving Mustapha Harun against Mohd Adnan Robert and Joseph Pairin Kitingan in 1985.

In a landmark judgment Justice Tan Chiaw Tong of the High Court in Sabah upheld the following precedents :

That a ruler can appoint as chief minister an elected member of the legislature who in his opinion enjoyed the confidence of a majority of the members; and,

that once appointed a chief minister was obliged to resign only after he had lost a vote of no confidence in the legislature.

After the counting of votes, Mustapha with only 16 seats, went to Governer Mohd Adnan’s official residence in the early hours of April 22 and got the governor to swear him in as chief minister.

By morning the same day, Governer Mohd Adnan revoked the appointment and later swore in Pairin (who had 26 seats) as chief minister. Mustapha took both Governor Mohd Adnan and Pairin to court, but lost the case.

Puthucheary said,

“He (the Menteri Besar) relinquishes his position by dint of a vote of no confidence in the state legislature.

Therefore the relinquishment of office by a chief minister or menteri besar can only follow upon a motion of no confidence, not by any other means.

This precedent has been established in that case in Sabah and it follows therefore that what has taken place in Perak over the past two days raises serious constitutional issues which only a court can resolve.

1 comment:

Nobody seems to want to say it but is it a race thing. ? I think the issues arising from this debate have all been exhausted, and all angles covered; however, we need to discuss the fairness of the Sultan in differing to the BN and giving the 2 fingers to Pakatan. Both the BN and Pakatan have 28 MPs on each side, and if nothing comes in between these two parties, then fairness calls for dissolution of Parliament and an election to be called, but here we have the problem of the 3 Pakatan jumping frogs to complicate matters.

I believe, in dealing with these 3 opportunists, the Sultan should have injected a dose of common sense into his deliberation. The problem with Sultan Azlan Shah is that he was biased, and he did not show any common sense at all in his deliberations. As Ruler of his people, Sultan ought to have been more caring and if he were protective of the interests of his people, then he should have taken all the circumstances into consideration. He should have taken into consideration the criminal charges that have already been laid by the ACA against these 2 Pakatan MPs and that prosecutions are afoot. Does he not in these circumstances, put foremost in his considerations the fact that these 2 PKR MPs have been charged with corruption and bearing in mind that in the event of their conviction their seats will as a matter of course be declared vacant and that a by election will have to be called anyway.

On the issue of his dealing in the affairs of those two Pakatan “cross overs” if Sultan Azlan Shah had any common sense then he should have given some weight to the prospect of a conviction for those two suspects and hence given the benefit of the doubt in favour of Pakatan, because in the first case the character of these two accused persons are not too kosher ! and secondly, he should have given more serious consideration that the corruption charges are more likely than not true and likely to convict the two accuseds. That being the case Sultan Azlan Shah in fact should have approved the request of the MB for dissolution.

Unfortunately in Malaysia Judges do not have any respect for the sanctity of the LAW and in many cases Judges DO WHATEVER THEY LIKED WITHOUT ANY CONSIDERATION FOR THE LAW; very often their ignorance of the LAW caused them to act in ways that made them (judges) commit offences in breach of the Malaysian Penal Code. It is laughable that High Court Judges can be so illiterate of the Law that they out of sheer ignorance incriminate themselves from sheer ignorance of the law. I am speaking from my own case that has been running for the last 9 years and the BABE IN THE WOODS JUDGE” committed among others aiding & abetting perjury & forgery and conspiracy to pervert the course of justice and several other criminal offences. Therefore it is not surprising to me at all that the Sultan is accountable for lapse of common sense in the execution of his duty in this crisis.